RCMP, border agents can use torture-tainted information

Newly disclosed records show Public Safety Minister Vic Toews issued directives to the RCMP and the Canada Border Services Agency, authorizing them to use and share information that was likely extracted through torture.
(Adrian Wyld/Canadian Press)

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The Conservative government has quietly given Canada's national police force and the federal border agency the authority to use and share information that was likely extracted through torture.

Newly disclosed records show Public Safety Minister Vic Toews issued the directives to the RCMP and the Canada Border Services Agency shortly after giving similar orders to Canada's spy service.

The government directives state that protection of life and property are the chief considerations when deciding on the use of information that may have been derived from torture.

They also outline instructions for deciding whether to share information when there is a "substantial risk" that doing so might result in someone in custody being abused.

CBC News contacted the public safety minister's office about the story, obtained by The Canadian Press, and asked if the government would use information obtained by torture.

"Our government does not condone the use of torture and certainly does not engage in it," said Julie Carmichael, the director of communications for Vic Toews. "The minister's directive is clear, the primary responsibility of Canadian security agencies is to protect Canadian life and property," she told CBC on Saturday. "At all times we abide by Canadian law." As key members of Canada's security apparatus, both the RCMP and border services agency have frequent and extensive dealings with foreign counterparts.

The directives are almost identical to one Toews sent last summer to the Canadian Security Intelligence Service — instructions that were roundly criticized by human rights advocates and opposition MPs as a violation of Canada's international obligations to prevent the brutalization of prisoners.

Each of the directives is based on a framework document — classified secret until now — that indicates the information-sharing principles apply to all federal agencies.

"The objective is to establish a coherent and consistent approach across the government of Canada in deciding whether or not to send information to, or solicit information from, a foreign entity when doing so may give rise to substantial risk of mistreatment of an individual," says the four-page framework.

Copies of the overarching principles and the Sept. 9, 2011, directives to the RCMP and border services agency were released to The Canadian Press under the Access to Information Act.

As with the directive to CSIS, the instructions from Toews to the RCMP and the border agency apply to information sharing with foreign government agencies, militaries and international organizations.

They say Canada "does not condone the use of torture" and is party to international agreements that prohibit torture and other forms of cruel, inhuman, or degrading treatment or punishment.

The directives add that "terrorism is the top national security priority" of the government and it is essential that the RCMP and border agency maintain strong relationships with foreign entities and share information with them, as well as with domestic agencies.

'Exceptional circumstances'

They say that in "exceptional circumstances" the RCMP or border agency "may need to share the most complete information in its possession," including information foreign agencies likely obtained through torture, "in order to mitigate a serious risk of loss of life, injury, or substantial damage or destruction of property before it materializes."

"In such rare circumstances, ignoring such information solely because of its source would represent an unacceptable risk to public safety."

The directives say that in most cases the Canadian organizations are responsible for establishing internal approval processes that are "proportionate to the risks" in sharing information with foreign agencies.

They also spell out procedures for information sharing when the risk of torture is "substantial" — meaning a "personal, present and foreseeable risk" based on something more than "mere theory or speculation."

The decision must be referred to the RCMP commissioner or the border services agency president when there is a substantial risk that sending information to, or soliciting information from, a foreign agency would cause harm to someone — and it is unclear whether the risk can be managed by seeking assurances that the material won't be misused.

In deciding what to do, the agency head will consider factors including:

— The importance to Canada's security of sharing the information;

— The status of Canada's relationship with — and the human rights record of — the foreign agency;

— The rationale for believing that sharing the information would lead to torture;

— The proposed measures to lessen the risk, and the likelihood they will be successful — for instance, the agency's track record in complying with past assurances and the ability of its officials to make good on them;

— The views of Foreign Affairs and other agencies.

The directives say the RCMP commissioner or border services agency president can refer the decision to the public safety minister, who may give the green light to share the information only in accordance with the directive and Canada's legal obligations.